FEDERAL COURT OF AUSTRALIA

Huon Aquaculture Group Limited v Minister for the Environment [2018] FCA 1011

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicants pay the Fourth and Fifth Respondents’ costs as agreed or assessed.

3.    The Applicants pay the Third Respondent’s costs up to and including 27 April 2017 as agreed or assessed.

4.    The Third Respondent have leave to file and serve an application to vary Order 3, together with submissions limited to 5 pages, no later than 4.00 pm on Friday 3 August 2018.

5.    The Applicants have leave to file and serve responsive submissions, limited to 5 pages, no later than 4.00 pm on Friday 31 August 2018.

6.    The Third Respondent have leave to file and serve reply submissions, limited to 2 pages, no later than 4.00 pm on Friday 14 September 2018.

7.    The Court will determine any application made pursuant to Order 4 on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Table of contents

KERR J:

1.    Introduction

1    The Applicants seek a declaration that a decision made by the Commonwealth Minister for the Environment (the Minister) on 3 October 2012 pursuant to s 75 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) that a proposed action was not a controlled action if undertaken in a particular manner, is invalid. The proposed action was, greatly compressed by way of summary, the expansion of finfish farming in Macquarie Harbour.

2    The proposed action had been referred to the Minister by Mr Kim Evans, Secretary of the Department of Primary Industries, Parks, Water and Environment (DPIPWE). He did so under cover of a lengthy submission dated 29 May 2012 (Ex A1 pp 2-111).

3    In that referral, Mr Evans had informed the Minister as follows:

Three separate companies have been working jointly on the proposed expansion of salmonid farming activities in Macquarie Harbour … all three of which have existing salmonid framing operations … [i]t is expected that these companies will take up the expanded lease area.

(Ex A1 p 11)

In response to a question in the referral template asking for the identity of the person proposing to take the action, Mr Evans had advised the Minister:

Given that the three individual companies are jointly involved in the proposed expansion and that DPIPWE will be actively managing both implementation of the amended MFDP [Marine Farming Development Plan], along with the adaptive management framework associated with the proposal … it was considered that one EPBC referral would be the most efficient and effective way of progressing the proposal. For this reason DPIPWE is the proponent for the action rather than each of the individual companies. It is the intent that the management approaches and mitigation measures will be applied by companies through leases and licences that the companies will hold.

(Ex A1 p 107)

4    An unusual feature of these proceedings is that the challenge to the validity of the Minister’s decision has been brought by one of the three fish farmers named by Mr Evans in the referral as having worked jointly on the proposed expansion, Huon Aquaculture Group Limited (Huon). Although nominally three companies are seeking relief, the two other Applicants are subsidiaries of the First Applicant Huon.

5    Huon brings these proceedings notwithstanding it later having expanded its own finfish farming operations in Macquarie Harbour in reliance on what it now asserts had been the Minister’s merely purported decision. The Minister is the Third Respondent. The other two fish farmers are the Fourth Respondent, Petuna Aquaculture Pty Ltd (Petuna) and the Fifth Respondent, Tassal Operations Pty Ltd (Tassal).

6    The Third, Fourth and Fifth Respondents each deny that the Minister’s decision was invalid.

7    The Minister does not submit that Huon has no arguable grounds for its application. The Minister however submits (and is joined in his submission by the Fourth and Fifth Respondents) that the Court should reject Huon’s entitlement to relief on established principles applying to discretionary remedies without traversing (but assuming for that purpose) the merits of Huon’s application.

8    The Respondents therefore further plead in their respective defences (although variously differently expressed) that, having regard to Huon’s delay in bringing these proceedings, its prior inconsistent conduct, and that the two other fish farmers, Petuna and Tassal (which had also relied on the validity of the Minister’s decision) would suffer financial and legal detriment if the Court were to make the declaration Huon seeks, Huon is not entitled to declaratory relief.

9    Huon submits that the Court should reject that proposition. It has adduced evidence that the motivation for Huon bringing these proceedings is that its directors believe on reasonable grounds that the expansion of salmonid aquaculture in Macquarie Harbour pursuant to the Minister’s purported decision has resulted in environmental damage in Macquarie Harbour, including but not limited to a significant reduction in dissolved oxygen levels. It submits that the Court is entitled to accept that evidence and conclude that Huon has reasonable grounds for that belief.

10    Huon submits that a declaration that the Minister’s decision was invalid would not have the draconian consequences the Respondents hypothesise of causing it and the two other fish farmers, Petuna and Tassal, to cease operating in Macquarie Harbour. Rather, it would restore the position of the three fish farmers to that which pre-existed the expansion purportedly authorised by the Minister’s decision, with much lesser consequences.

11    Having regard to the terms of the EPBC Act there is, Huon submits, no sound discretionary basis for denying the issue of a declaration. Huon contends that the Court should address the case it advances on the merits. On that basis, Huon submits it can make good its challenge pleaded at [38] of its Third Further Amended Statement of Claim. Huon contends that the Minister’s decision was invalid for reasons of uncertainty and lack of finality, as well as it not being directed to the particular persons undertaking the action, and being dependent on decisions to be made from time by time by a third party, being the Secretary of DPIPWE, the former First Respondent (see at [12]-[15] below).

1.1    The history of these proceedings

12    Before the Court addresses the evidence and the parties’ respective contentions, it is appropriate first to observe that this litigation has had a complex procedural background.

13    Huon initially named the Secretary of DPIPWE as the First Respondent and the Director of the Environment Protection Authority (the EPA) as the Second Respondent in its originating application. Huon did so on the premise that DPIPWE, rather than the individual fish farmers (itself, Petuna and Tassal) was the person taking the action that had been referred to the Minister for his decision.

14    Huon’s pleadings in that regard were later abandoned before the scheduled trial of certain separate questions which the Court had agreed to decide. One of those questions had involved the correct identity of the person taking the action.

15    Once Huon had amended its pleadings, the First and Second Respondents applied to cease to be parties. The Court gave its reasons for granting their applications in Huon Aquaculture Group Limited v Secretary, Department of Primary Industries, Parks, Water and Environment (No 2) [2018] FCA 89.

16    In the context of the procedural background to these proceedings it is also appropriate to note that following the Court’s earlier interlocutory decision in Huon Aquaculture Group Limited v Secretary, Department of Primary Industries, Parks, Water and Environment [2017] FCA 1615 (Huon No 1), Huon further amended its pleadings by deleting its earlier contentions that the action as determined by the Minister to not be a controlled action if undertaken in a particular manner has, will have, or is likely to have a significant impact on a declared World Heritage Area and/or a listed threatened species.

17    In the aftermath of those amendments to Huon’s pleadings, there being no objection from any party, the Court determined not to proceed with a trial of the remaining separate questions. Instead, a full hearing was scheduled and a trial was conducted on all issues. The parties did not further amend their pleadings, and the Court did not consider it necessary to order revised pleadings following the First and Second Respondents ceasing to be parties. Huon’s Third Further Amended Statement of Claim and the Respondents’ several defences thereto, in so far as they refer to the First and Second Respondents, are to be comprehended as references to the Secretary of DPIPWE and the Director of the EPA respectively.

18    I now set out the background to the Minister’s decision.

2.    Background

2.1    Description of Macquarie Harbour

19    Macquarie Harbour is on the west coast of Tasmania. Both the Harbour and those parts of it subject to existing Tasmanian regulatory control for aquaculture were described in the referral dated 29 May 2012 made by DPIPWE under its Secretary’s signature in the following terms:

… The harbour lies approximately 175 km to the north west and south west of the major Tasmanian cities of Hobart and Launceston respectively. The nearest township to the marine component is Strahan, approximately 11 km to the north of the closest proposed development on the water.

The area covered by the Macquarie Harbour [Marine Farming Development Plan] is the physical extent of the harbour outside the Tasmanian Wilderness World Heritage Area (TWWHA) and includes part of the South West Conservation Area. It consists of all that area bounded by the high water mark between lines drawn from Coal Head and Steadmans Point across the harbour to the south east and the entrance to the harbour to the north west at a line drawn between Braddon Point through Bonnet Island Light to the western shore …

The harbour itself is a large estuary where saline ocean waters mix with freshwaters predominantly from the Gordon and King Rivers and Birchs Inlet. The harbour has a shallow restricted entrance which opens into a long deep basin with depths ranging from 0 – 50 m in the centre of the harbour; an old Gordon River channel follows the southern shoreline before reaching shallow sand banks to the north west of Table Head; and shallow water at the entrance to the Gordon River and a formed delta at the mouth of the Kind River.

The natural harbour is approximately 33 km long and 9 km wide with a total surface area of 276 square km. The water column in the harbour is typically three-layered: fresh, marine, and intermediate, trending to a salt wedge structure near the two rivers. (Ex A1 p 8)

20    No party submits that that was not an accurate description of the harbour.

2.2    Marine farming in Macquarie Harbour was an established use prior to the passage of the EPBC Act in 1999

21    The referral also advised (Ex A1 p 25):

… [F]ish farming in Macquarie Harbour commenced prior to the EPBC in the mid 1980s, and incremental changes since then were determined unlikely to have a significant impact on MNES [matters of national environmental significance].

22    It is not contentious that each of Huon, Petuna and Tassal had individual pre-existing marine leases in Macquarie Harbour and were growing and harvesting fish before the passage of the EPBC Act. Their individual entitlements to continue fish farming in Macquarie Harbour after the passage of the EPBC Act had been “grandfathered” by s 43B of the EPBC Act:

Actions which are lawful continuations of use of land etc.

(1)    A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if the action is a lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of this Act.

(2)    However, subsection (1) does not apply to an action if:

(a)    before the commencement of this Act, the action was authorised by a specific environmental authorisation; and

(b)    at the time the action is taken, the specific environmental authorisation continues to be in force.

Note:    In that case, section 43A applies instead.

(3)    For the purposes of this section, neither of the following is a continuation of a use of land, sea or seabed:

(a)    an enlargement, expansion or intensification of use;

(b)    either:

(i)    any change in the location of where the use of the land, sea or seabed is occurring; or

(ii)    any change in the nature of the activities comprising the use;

that results in a substantial increase in the impact of the use on the land, sea or seabed.

23    The actions of Huon, Petuna and Tassal respectively in connection with growing and harvesting salmon in Macquarie Harbour were a lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of the EPBC Act. That use was lawful. It was authorised by and was subject to regulation under Tasmanian law. It is thus uncontentious in these proceedings that each of the then operators (Huon, Petuna and Tassal) had been entitled to continue marine farming in Macquarie Harbour beyond the coming into force of the EPBC Act subject to the qualifications imposed by s 43B(3). Those qualifications included that there be no enlargement, expansion or intensification of use.

2.3    The then system of regulation under Tasmanian law

24    The then applicable state legislation which regulated finfish farming was described in the referral by Mr Evans as follows:

2.4 Context, planning framework and state/local government requirements

…

Marine farming in Tasmanian waters is subject [to] the provisions of the Marine Farming Planning Act 1995 (MFPA) and the Living Marine Resources Management Act 1995 (LMRMA). Both Acts sit within the overarching Resource Management and Planning System of Tasmania (RMPS) which is made up of a suite of legislation containing the objectives of the RMPS.

The MFPA provides for the preparation of Marine Farming Development Plans, amendments to plans and reviews of plans. Plans use a zoning concept to identify areas that are suitable for marine farming activities. The plans identify the maximum area that can be allocated for a marine farming lease or leases within marine farming zones, broad categories of species that may be farmed within those lease areas and the operational constraints (called management controls) on those operations.

The objectives of the MFPA are to integrate marine farming activities with other marine users, minimise any adverse impacts, take account of land uses and take account of the community’s right to have an interest in those activities.

The MFPA prescribes statutory processes for the preparation of MFDPs, amendment and review of plans. These provisions include environmental assessments, public consultation and consideration of issues by an independent and expertise based Panel established to make recommendations to the Minister of Primary Industries and Water. The Minister is charged with the responsibility to approve or not approve plans or amendments to plans.

Fourteen MFDPs have been prepared to cover the major areas in Tasmania suited to marine farming activities.

While the MFPA provides for the occupation of State waters for marine farming activities and controls the extent of these activities the LMRMA includes provisions to licence a leaseholder to farm specific species and further impose operational constraints on activities.

The regulation of marine farming activities is therefore achieved through multiple controls:

•    Statutory provisions under the MFPA and LMRMA

•    Management controls contained within marine farming development plans

•    Marine farming licence conditions.

The Macquarie Harbour Marine Farming Development Plan October 2005 provides for the culture of salmonids (Atlantic salmon, rainbow trout and brook trout) in 10 marine farming zones up to a maximum leasable area of 564 hectares. …

The approval of developments and operation of terrestrial components associated with marine farming is regulated primarily through the Land Use and Planning Approvals Act 1993 (LUPAA) and the Environmental Management and Pollution Control Act 1994 (which are both part of the RMPS). Depending on the nature and location of facilities other approvals may be required under State legislation including the following acts: Threatened Species Protection Act 1995, Aboriginal Relics Act 1975 and the Historic Cultural Heritage Act 1995. In addition, activities not covered by leases and licences, occurring within reserved areas should be undertaken in accordance with the State’s Reserve Management Code of Practice. For reserves managed by the Tasmanian Parks and Wildlife Service (PWS) approvals are required under the National Parks and Reserves Management Act 2002 to undertake certain activities. A Reserve Activity Assessment process is used by PWS to ensure any relevant activities are compliant with relevant statutes, policies and plans. In undertaking the assessment the benefits of the proposed activity (social, economic and environmental) are also identified as are any measures taken to maximise benefits to the environment and to minimise impacts upon it.

Activities associated with marine farming that may take place in areas adjacent to that covered by the MFPD may also require regulation under other State legislation, including: Natura Conservation Act 2002: (reservation, wildlife management), Animal Health Act 1995 (introduction or pest species), Weed Management Act 1999 (introduction of weeds), Plant Quarantine Act 1997 (introduction of plant pests) Crown Lands Act 1976 (regulation of activities on Crown Land), Veterinary Chemicals (Control of Use) Act 1995 (safe use of chemicals, including disposal) and Marine and Safety Authority Act 1997 and associated regulations (boat speed and safe handling).

(Ex A1 pp 21-22)

25    While extensively regulated, no party submits that the fish farmers’ prior individual actions had been the subject of a specific environmental authorisation as defined in s 43A of the EPBC Act.

2.4    Passage of the EPBC Act 1999

26    The EPBC Act received Royal Assent on 16 July 1999 and came into force on 16 July 2000. The EPBC Act, among other things, established a scheme that required a person proposing to take an action he or she thinks may be a controlled action (that is one that has, will have, or is likely to have a significant impact on a matter of national environmental significance as defined in Pt 3, Div 1) to refer the proposed action to the Minister (s 68).

27    It is unnecessary for the purposes of these reasons to set out the provisions of Pt 3 of the EPBC Act. It is sufficient to indicate that as relevant to these proceedings Pt 3 includes provisions relating to World Heritage properties, National Heritage places and listed threatened species and communities.

28    Given the nature of fish farming and Macquarie Harbour’s adjacency to the Tasmanian Wilderness World Heritage Area, it may be thought self-evident that any action involving the enlargement, expansion or intensification of use of Macquarie Harbour for aquaculture after the commencement of the EPBC Act was an action that had to be referred to the Minister.

2.5    Huon, Petuna and Tassal take the view that the expansion of fish farming in Macquarie Harbour was desirable

29    It is uncontentious that, after the coming into effect of the EPBC Act, the three operators came to share the view that their fish farming operations in Macquarie Harbour could and should be expanded. Despite the concerns Huon has since come to have regarding the pressures increased fish stocking have placed on the general health of Macquarie Harbour, at that time Huon shared the views of Petuna and Tassal that an expansion of fish farming in Macquarie Harbour could be conducted sustainably and was desirable. Huon’s counsel, Mr Galasso SC, in his opening submission accepted that Huon had “participated in the contemplation of the expansion of marine farming in Macquarie Harbour” (transcript p 8 lines 6-7).

30    Under the Tasmanian regulatory system a change of that kind required an amendment to the Macquarie Harbour Marine Farming Development Plan October 2005 (MHMFDP). The operators’ application for such an amendment was required to be accompanied by an Environmental Impact Statement (EIS) pursuant to s 23 of the Marine Farming Planning Act 1995 (Tas) (Ex A1 p 22). Accordingly Huon, Petuna and Tassal cooperated in preparing and producing an EIS (Ex A2 pp 85-1176) to accompany draft amendments to the MHMFDP. They also were responsible for the preparation and production of an Addendum to that EIS (Ex A2 pp 1-1176). The introduction to the Executive Summary of the EIS states (Ex A2 p 106):

The Tasmanian salmonid (Atlantic salmon and rainbow trout) industry provides significant economic benefits to the State and has contributed to Tasmania’s reputation as a quality producer of fine foods. Within 20 years of the first commercial harvests, farmed salmonids have become the leading farming activity in Tasmania ahead of dairy, vegetables, poppies, pyrethrum, beef, fine wool, wine and the once iconic apple industry. In the 2010-2011 financial year the industry produced 32,328 T of salmonids with a farm gate value of $379 million. It has become a standout Tasmanian brand icon.

The industry continues to experience strong sales momentum despite the current challenging economic environment. Sales are proving resilient with sales approaching $400 million at wholesale levels. The salmon and trout farming industry currently create over 1,200 direct jobs and $150 million to the Tasmanian Gross State Product.

The purpose of this proposal is to expand existing salmon farming operations in Macquarie Harbour by 362 ha of leasable area, with a view to maximising sustainable production in the harbour. This proposal is in line with the industry’s 2010-2030 strategic plans to double total salmon production in Tasmania by 2030 and to strategically enable ongoing growth in the industry.

A Social Return on Investment (SROI) analysis has been conducted on this proposed expansion. The SROI analysis suggests that the proposed expansion will deliver, during the first five years, an additional $24.2 million in social value in areas identified by the local community.

This means that, on top of the actual capital and operating investment by the proponent and within the constraints of the models used, the combined increases in social return and Gross Regional Product could be expected to provide an additional $88.6 million in benefit to the North West region in the first five years following the start of the proposed expansion phase.

The three companies currently growing salmonids in Macquarie Harbour, Tassal Operations Pty Ltd (Tassal), Huon Aquaculture Group Pty Ltd (Huon) and Petuna Aquaculture Pty Ltd (Petuna), collectively the Proponent, are collaborating in the sustainable development of the harbour and subsequently in the development of this proposal and the accompanying EIS.

2.6    Tasmanian government and DPIPWE agree with Huon, Petuna and Tassal that expanded marine farming in Macquarie Harbour should be facilitated

31    Following receipt of that EIS and its Addendum, the state government amended the MHMFDP in May 2012. The amendment increased the leasable area for fish farming in Macquarie Harbour to facilitate increased production.

32    However, the planned expansion required Commonwealth approval. Section 42B(3) of the EPBC Act expressly excluded (inter alia) the expansion of an action from the exemption provided for an existing use.

33    Section 69 of the EPBC Act provides a mechanism for a state or an agency of a state with administrative responsibilities for matters for which it is responsible to refer a proposed action a party is proposing to take that requires the Minister’s decision as to whether or not it is a controlled action:

State or Territory may refer proposal to Minister

(1)    A State, self-governing Territory or agency of a State or self-governing Territory that is aware of a proposal by a person to take an action may refer the proposal to the Minister for a decision whether or not the action is a controlled action, if the State, Territory or agency has administrative responsibilities relating to the action.

(2)    This section does not apply in relation to a proposal by a State, self-governing Territory or agency of a State or self-governing Territory to take an action.

Note:    Section 68 applies instead.

2.7    Proposal to expand marine farming in Macquarie Harbour referred to the Minister

34    On 29 May 2012, DPIPWE referred the proposed expansion of marine farming activity in Macquarie Harbour to the Minister for determination pursuant to the EPBC Act. The referral, together with 12 appendices, is at pp 2-354 of Ex A1.

35    A “short description” of the proposed action is set out at p 6 of Ex A1:

The proposed action is:

•    The expansion of marine farming operations, that will occur consistent with the 2012 amendment to the Macquarie Harbour Marine Farming Development Plan, which will include the following activities:

•    The arrangement and securing of sea pens for fish farming;

•    The construction of associated water based infrastructure;

•    The operation of fish farms including:

•    Servicing and maintenance of sea pens and associated water and land based infrastructure;

•    Feeding and managing the health, waste, processing and predators of fish in the farms;

•    Transportation of fish to and from the farms across water and land.

(Footnote omitted.)

36    The referral provided a more detailed description of the proposed action (Ex A1 pp 11-20):

Background – Expansion of Marine Farming

The approval of the amendment to the MFDP has paved the way for the following to occur:

•    change in location of existing marine farming zones and lease areas

•    increase in leasable area within zones

•    addition of a new zone

•    changes to management controls/operations which apply to zones

Changes to Lease Areas and Locations

To progress expansion of salmonid farming activities in Macquarie Harbour the Marine Farming Planning Act 1995 required an amendment to the existing Macquarie Harbour Marine Farming Development Plan October 2005. A full description of the amendment as it was initially proposed can be seen in Appendix 2 with the final amendment provided in Appendix 3. The marine farming review panel (MFRP) recommended further modifications to management controls post public consultation which, whilst not changing the intent of the management controls proposed in Appendix 2, did clarify wording around a number of issues.

The area covered by the Macquarie Harbour Marine Farming Development Plan October 2005 (DPIPWE 2005) is the physical extent of the harbour outside of the Tasmanian Wilderness World Heritage Area (TWWHA) and consists of all that area bounded by the high water mark between a line drawn from Coal Head and Steadmans Point across the harbour to the south east (being the Western Boundary of the TWWHA) and the entrance to the harbour to the west at a line drawn between Braddon Point through Bonnet Island Light to the western shore. …

The Act provides for the preparation of MFDPs that designate areas of State waters as marine farming zones and the maximum area that may be used for marine farming operations within zones. The Act also provides for provisions for operational constraints on marine farming activities.

The Macquarie Harbour MFDP prescribes 10 marine farming zones within the plan area which provide for the culture of salmonids in 564 hectares of marine farming lease area.

The amendment to the Macquarie Harbour MFDP has resulted in moving some zones to areas better suited to salmonid culture and expanding the maximum leasable area by 362 hectares to 926 hectares – this expansion includes the addition of a farming zone.

Variations to zone locations and sizes (including maximum leasable areas) has taken effect with the approval of the amendment, however new lease areas and variations to existing leases (including sizes and locations) will need to be approved consistent with the amendment. It is the intention of industry and the Planning Authority that these steps occur within quick succession. The specific changes to each zone are discussed in Appendix 1. … Table 2.1 indicates changes to locations and leasable areas.

Three separate companies have been working jointly on the proposed expansion of salmonid farming activities in Macquarie Harbour. These include Tassal Operations Pty Ltd (Tassal), Huon Aquaculture Group Pty Ltd (Huon) and Petuna Aquaculture Pty Ltd (Petuna), all three of which have existing salmonid farming operations within the MFDP area as it existed prior to the 2012 Amendment. It is expected that these companies will take up the expanded lease area. …

Changes to Management Controls

Section 3 of the Macquarie Harbour Marine Farming Development Plan October 2005 contains management controls to manage and mitigate negative effects that marine farm operations may have within the plan area.

The MFDP as amended has a number of existing management controls that will remain unchanged. Eleven new management controls have been inserted and 5 controls have been amended to cater for the proposed expansion. Appendix 3 illustrates the revised management controls and Appendix 4 provides context around new versus amended controls.

The Proposed Action

The proposed action is:

•    the expansion of marine farming operations, that will occur consistent with the 2012 amendment to the Macquarie Harbour Marine Farming Development Plan, including the following activities:

•    The arrangement and securing of sea pens for fish farming;

•    The construction of associated water based infrastructure;

•    The operation of fish farms including:

•    Servicing and maintenance of sea pens and associated water and land based infrastructure;

•    Feeding and managing the health, waste, processing and predators of fish in the farms;

•    Transportation of fish to and from the farms across water and land.

The following components of each aspect of the action are described below, with specific details on activities to occur within each marine farming zone provided in Appendix 1 and Appendix 2:

Salmon Farming Operations Consistent with the MFDP

•    Construction and Infrastructure Development

•    Mooring and Grid System

•    Size and Configuration of Sea Pens

•    Other Infrastructure/Construction

•    Operation of fish farms

•    Servicing and Maintenance of Sea Pens and Associated Infrastructure

•    Boat Movements

•    Infrastructure Maintenance

•    Feeding and Managing Health, Waste, Processing and Predators of fish in the Farms

•    Fish size/stocking density

•    Fish Health

•    Predator Control

•    Waste Management

•    Environmental Management

•    Transportation of fish to and from the farms across water and land

Salmonid Farming Operations Consistent with the MFDP

The expansion of salmon farming operations within Macquarie Harbour, consistent with the 2012 Amendment of the MFDP will include activities associated with the construction of aquatic components of marine farms and ongoing operation of both terrestrial and aquatic components of marine farms. These include:

•    The construction, arrangement and securing of sea pens for fish farming;

•    The construction of associated land and water based infrastructure;

•    The operation of fish farms including:

•    Servicing and maintenance of sea pens and associated water and existing land based infrastructure;

•    Feeding and managing the health, waste, processing and predators of fish in the farms;

•    Transportation of fish to and from the farms across water and land.

Construction and Infrastructure Development

In order to operate, the expansion of fish farms in Macquarie Harbour requires the construction and placement of new and existing infrastructure.

New mooring and grid structures are required to moor existing, and additional sea pens to. The size of these pens varies across leases, as does their configuration and locations. Additional on water structures are also required for servicing expanded farms (e.g. barges).

Mooring and Grid system

Each company will use their own mooring system to attached sea pens/cages to. There are currently approximately 132 cages in Macquarie Harbour across 5 leases. Planned expansion of the industry under the amendment to the MFDP will see an increase in cage numbers to approximately 211. The mooring systems to be used across zones are described in Appendices 1 and 2. Baseline surveys which establish whether there will be any impacts from mooring and grid systems are not part of this action.

Size and configuration of Sea Pens

The location and configuration of pens associated with the amendment of the MFDP for each company are described in Appendices 1 and 2. … There are no change[s] to Zones 7 and 8 as a result of this proposal.

Other Infrastructure/Construction Aspects

Additional land and water based infrastructure will be required in order to operate fish farms associated with the proposed expansion. There is likely to be a need for some improvements to land based facilities over time.

Huon aquaculture immediately require a new centralised feeding system barge, with a view to a centralised feeding system involving dedicated feed barges proposed for each zone into the future. Additional power generators will be associated with new barges.

Two additional feeding boats are also likely to be required in the next 7 years.

Tassal’s feed storage shed is inadequate to cater for current needs and is in a poor state of repair – in addition access to the site is restricted (Appendix 2).

It is estimated that traffic movements will increase from around 90 to a maximum of 228 within 5 years – to manage this impost on Strahan township, and to streamline operations an aquaculture hub away from the Strahan township has been proposed.

Operation of Fish Farms

The operation of fish farms in Macquarie Harbour requires a range of activities within the key areas listed below:

•    Servicing and maintenance of sea pens and associated water and land based infrastructure;

•    Feeding and managing the health, waste, processing and predators of fish in the farms;

•    Transportation of fish to and from the farms across water and land.

Servicing and Maintenance of Sea Pens and Associated Infrastructure

Servicing of on water infrastructure involves the movement by boat of maintenance teams multiple times a day to sea pens to undertake a range of maintenance (and stock husbandry) tasks. Boat movements and maintenance tasks are described in detail below.

Boat Movements

Boat movements associated with marine farming activities in Macquarie Harbor can be placed into two categories; vessel movements from shore based operations to marine based operations and vessel movements within lease areas. Table 2.2 illustrates current and proposed boat movements by type.

Vessel movements from shore based operations to marine based operations consist of staff transfers to lease areas, feed transfer, net and equipment transfer, dive team movements and harvest vessels (Table 2.2). The proposed increase in movements represents an increase from 59 movements to 158 movements per week. Table 2.2 does not include movements undertaken by smaller vessels within lease areas.

Companies in Macquarie Harbour usually moor a number of vessels within the lease areas which are used to service the lease during operational hours. These vessels generally do not leave the lease area but travel between cages and mother barges.

* Tassal uses two existing marine farming leases in Macquarie Harbour which will be serviced by the same vessels on the one trip, therefore the traffic from Strahan to the leases will not change considerably but the distance travelled by the vessels will increase.

It should also be noted that harvesting will not occur all year round and from the same lease each year, for example, Tassal will harvested for 6 months of the year from Zone 9 every second year. The figures above have included harvest vessel movements all year round. Appendix 1 contains detailed descriptions of boat movements by zone.

Infrastructure Maintenance

A variety of maintenance tasks are undertaken either routinely or for a specific purpose. These tasks include:

•    Checking of cage nets via scuba diving

•    Inspection of bird nets

•    Repair of nets

•    Vessel maintenance for barges

•    Routine generator and other equipment maintenance

•    Inspection of moorings (divers and ROV)

Off water infrastructure maintenance, including maintenance on large barges occurs either at land based sites or in specialised workshop environments in Devonport and Burnie. Boat servicing, outboard servicing etc occurs at the slip yard in Strahan. Net maintenance and construction occur at land based net areas.

Specific maintenance activities are described by zone in Appendix 1. There will be no change to activities occurring at Zone 7 and Zone 8.

Feeding and managing the health, waste, processing and predators of fish in the farms

The management of fish farming activities includes the management of:

•    fish size and stocking densities;

•    fish feeding;

•    fish health;

•    predator control;

•    waste management;

•    environmental management.

Fish Size/Stocking Density

It is the intention that two species will be cultivated in the expanded marine farming operations in Macquarie Harbour: rainbow trout (Oncorhynchus mykiss) and atlantic salmon (Salmo salar).

Sites would be stocked with intake fish ranging in size from 80g – 300g depending on species and company. Harvest size would range from over 4kg to 5kg.

Current estimates are that around 3.2 million smolt are used in the harbour per year – this figure is expected to increase to around 6.3 million smolt with the expansion.

The maximum stocking density of fish would increase from 15 kg/m³ to 17 kg/m³ of cage volume.

Species and stocking approaches by zone can be seen in Appendix 1.

Information regarding fish size and number, stocking density (also biomass limits on an area basis i.e. tonnes/ha) and feed volume all have links to the modelling used to determine the sustainable carrying capacity (total biomass and stocking density) of Macquarie Harbour for this development. They are also associated with the adaptive management framework that is proposed. Of these, the potential to prescribe stocking density and biomass limits have been incorporated into management controls.

Fish Feeding

Feeding is currently undertaken via boats using water cannons as well as by centralised feed systems with the operator either using camera feedback systems to control the feeding or, the system responding to appetite ingestion rate of the fish to feed to satiation without waste.

The feed used is commercial extruded feed and dry extruded sinking pellets sourced from both within Tasmania and interstate. There is no change to the types of feed to be used in the expansion from currently farmed area. The volumes of feed will vary depending on market expansion, smolt type, smolt size, transfer date, photoperiod regime, water temperature, fish health, and harvest profile.

Sediment monitoring is carried out during the Annual Video Surveys as required by marine farming licence conditions, as well as during routine internal environmental monitoring programs companies run. Monitoring methods follow those employed to assess seafloor condition as outlined in the Monitoring Protocols of the Fish farm licences.

Details of each company’s approach can be seen in Appendix 1.

Fish Health

Currently, there are no serious disease issues in Macquarie Harbour. Previously, a number of diseases have been identified in Macquarie Harbour; these have included yersiniosis, marine aeromonad disease of salmonoids (MAS) and vibriosis. In 2006, Ichthyophonus caused mortality in rainbow trout. In addition, Aquabirnavirus, Reovirus and a rickettsia-like organism (RLO) have also been detected.

The key component in the preventative disease program for Macquarie Harbour is vaccination against Marine Aeromonad Disease and vibriosis. Since the introduction of the vaccination process, there have been no outbreaks of these diseases. Additionally, there is mandatory health surveillance carried out by Department of Primary Industries, Parks, Water and Environment (DPIPWE) personnel within the framework of the Tasmanian Salmonid Health Surveillance Program (Tas SHSP) which is a joint Industry and Government Program.

Further, the current operators within the plan area have developed a Fish Health Management Plan (FHMP) which will provide a specific detailed strategy for the ongoing management of fish health in Macquarie Harbour (See Appendix 2). The operators have signed off on the strategies outlined in the FHMP which consists of a combination of compliance, best practice and regulation through management controls and marine farming licence conditions. The FHMP addresses detailed, standard operating practices to prevent disease from entering the harbour, to prevent spread and impact of disease in the harbour and to respond to emergency disease situations. The FHMP will be reviewed annually or more frequently if needed.

Under expanded operations there will be an associated increase in the real amount of vaccinations being administered to smolt – currently trout and salmon have one vaccination by injection and one by bath in the hatchery and this will continue.

Chemical Usage

Chemical use in the marine environment will be restricted to fuels and oil based lubricants associated with boats, and disinfectants, cleaning agents and antibiotics. Fuels would constitute by far the majority, by volume, of the total amount of chemicals proposed to be used. Small volumes of disinfectants are used in a variety of manners for hygiene purposes, and cleaning agents are used on harvest infrastructure following harvesting operations. Antibiotics would only be prescribed over short periods to address illness and animal welfare issues. It is not possible to forecast antibiotic use, but it is expected that antibiotic use will remain low, if not absent, due to improved husbandry practices and effective vaccines.

It is proposed that most chemical usage will continue across the expansion area proportional to the increase in biomass being farmed. Based on this, it is predicted that a 263% increase will occur in the chemical use associated with the expansion.

Predator Control

Australian and New Zealand Fur Seals are a potential predator of salmon and trout in marine farms. The main means of controlling seal predation will be via exclusion, by means of heavily weighted sinker ring and tensioned cage nets and above water predator nets. Net barriers may also be required above the handrails to prevent seals from jumping into the cages. There is ongoing investigation and trialling of new exclusion and deterrent technologies. Under the DPIPWE’s seal management protocols, marine farmers can apply to the Department to relocate problem seals.

Birds are also a potential problem. The means of control to be used is prevention of access to the fish or to feed pellets, by means of properly designed and supported bird nets. See Appendix 1 for further zone specific details.

Waste Management

Both solid and liquid wastes are produced by marine farms and are managed by different means. It is expected that there will be a net increase in most waste streams generated commensurate with an increase in stocked cage numbers. Whilst this will not be realised during the first year of the expansion, there will be a gradual staged increase over time until all sites are fully stocked, at which point a 62% increase from current levels of land-based disposal of waste will be realised. Fish mortality wastes are expected to increase by 60% from current levels (see below).

Solid wastes include fish bodies (mortalities), waste from the harvesting process (including body parts and bloodwater), wastes on nets and uneaten feed.

Mortalities are collected and buried at an approved mort lease site or mort pit. Bloodwater and solid waste from the harvest process is contained in harvest bins during the harvest and either delivered to a processing facility at Devonport or, the waste is separated with the solid component going to mort pits, and the liquid component released in to the municipal sewerage scheme through a Trade Waste Agreement with Cradle Mountain Water Authority depending on the marine farming company (Appendix 1).

Current levels of fish mortalities across the industry in Macquarie Harbour are generally around 1.97% (approx 63000 fish) of stocked numbers by live weight. It is expected that this rate would remain comparable following the expansion resulting in approx 124000 dead fish at full production. This would be an increase from current totals of around 60%.

Local government approval is required for fish waste volumes <100 tonnes to mort landfill sites. Currently three mort pits located around Strahan (Table 1.1). At full production levels this approval would be exceeded. It is not anticipated that this approved tonnage of mortality disposal would be exceeded within the first two years of the proposed amendment. Once the Council approval is exceeded the companies would need to gain Tasmanian Environmental Protection Authority approval for an alternative disposal option.

Discussions with a third party who currently render all fish mortalities from the east coast of Tasmanian have commenced to investigate ensilage options available for the collection and disposal of mortalities. The increased number of fish mortalities as a result of the proposed expansion would mean that the ensiling of this waste would be economically viable for the third party to the extent that transport costs would be off set. Initial discussions have revealed that it is likely that the third party would employ a local site Manager to ensure that the ensilage facility was run to the Environment Protection Authority approved standards.

Nets are, in general, simply hung to dry at the net processing sites. The dry bio-solids fall off the nets and are swept up and collected in bags and disposed of to landfill.

Uneaten feed is minimised through the use of underwater-video camera feedback systems and additional tools such as electronic pellet sensors. Any pellets that do fall through the cages are detected in routine video surveys, and the information is used to continuously improve feed management.

Fish faeces fall through the bottom of the fish cages and are deposited on the seabed below the cages. The cage positions are routinely fallowed to allow the biological processes in the sediment to process the organic matter, and for the sediments to recover.

All inputs into the marine environment that arise from the present amendment are to be mitigated through the adaptive management framework. This process drives the harbour Fish Farming Environmental Management Plan (FFEMP) which uses as its basis the modelling and a comprehensive regulatory and industry based monitoring program targeting both water quality and benthic parameters.

Targeted monitoring of benthic and water column parameters will be used to validate the model into the future and results for the validation will support the decision making process for fish farm stocking levels in the harbour.

At present environmental standards for substrate deposition are contained under Marine Farming Licence Conditions, Compliance with Environmental Standards. Recovery and accumulation rates are being addressed through the FFEMP using modelling and the results from the benthic part of the monitoring program and other related research will be used to inform future modelling. For remineralisation the Proponent is collaborating with Institute of Marine and Antarctic Studies (IMAS) and DHI consultants to initiate a research project to elucidate these processes in the harbour.

In terms of mitigation measures that may be implemented through farm operations year class fallowing is considered integral to any sustainable farming to allow regeneration of benthic communities and facilitate good environmental maintenance procedures for the production environment. Fallowing is assessed on a regular basis by the Proponent through the use of ROVs below the pens, both as part of the annual regulatory requirements (licence conditions) for substrate assessment and as an operational tool for assessing feed wastage and substrate impact.

In the future the fallowing period implemented will be based initially on the results of the benthic monitoring (directed through the FFEMP) as production increases. Appropriate management responses will be implemented if unacceptable changes are observed.

Liquid wastes include black and grey water from barges. Black water is either treated with an approved sewage treatment system and discharged after prescribed water quality parameters stipulated in marine farming licence conditions have been met or, it is transported to Strahan and released into the municipal sewage system. Grey water is either discharged within lease areas or released into the municipal sewage system depending on the company (Appendix 1).

Environmental Management

Biogeochemical and hydrological modelling has been used to determine a sustainable maximum carrying capacity of farmed salmonids in Macquarie Harbour of 35 T/ha of total lease area or subleased area held by a leaseholder, based on the planned expansion area.

The modelling that has been undertaken is considered to be contemporary. It is however acknowledged that the modelling, as with any form of predictive assessment, has limitations. To balance any potential limitations of the model a FFEMP will be implemented, which will provide an adaptive monitoring and modelling approach to track the initial predictions of the model over time and refine future modelling. See section 4 for further details. Continuing measurements of information to inform the benthic monitoring program and establishment of water quality baseline environmental data are not part of this action.

Transportation of fish to and from the farms across water and land

Significant increases in on and off water vehicular movements are likely to occur as a result of expansion of farming in Macquarie Harbour.

Boat movements are described in detail in Appendix 1 and represented in Table 2.2. Overall movements will increase from 59 movements to 158 movements per week.

The change in traffic movements one way into Strahan from Hobart and the North West coast by operator are outlined in Appendix 1 – these figures include passenger vehicles and small delivery/service type vehicles.

Existing farming operations are not considered to be part of the current action as fish farming in Macquarie Harbour commenced prior to the EPBCA in the mid 1980s, and incremental changes since then were determined unlikely to have a significant impact on MNES. In addition ongoing measurements associated with the benthic monitoring program and the establishment of water quality baseline environmental information are not included in the action.

(Footnotes omitted, emphasis in original.)

37    The involvement of Huon, Petuna and Tassal in requesting an amendment to the MHMFDP was identified in the referral as follows (Ex A1 p 22):

The three companies currently farming salmonids in the harbour have jointly requested an amendment to the Macquarie Harbour MFDP under section 33 of the MFPA to move and expand existing marine farming zones and leasable area and to create a new zone with leasable area. The requested amendment has resulted in an increase in leasable area of 362 hectares. Specific detains are contained in section 2.1 of this referral.

38    The Court notes that the detailed statement of the proposed action expressly excluded “[c]ontinuing measurements of information to inform the benthic monitoring program and establishment of water quality baseline environmental data” from the action (Ex A1 p 20). The reason for that is not apparent. It may be because DPIPWE had regarded those matters as within its own regulatory responsibilities rather than as a component of the action, but the documentation is silent on that.

39    As the history of this matter reveals, the way the referral had been expressed, as set out above, led the Department of Sustainability, Environment, Water, Population and Communities (the Department) initially to treat the action as having been referred under s 68, that is as an action proposed to be undertaken by DPIPWE itself (see below at [46]-[61]).

2.8    The nature of the referral mechanism

40    Subject to other provisions of the EPBC Act, including those relating to the Minister’s obligations to invite and consider comment and the Minister’s power to request further information (see s 76), none of which are contentious in these proceedings, the Minister is required, within 20 business days, to determine whether or not the proposed action is a controlled action or not: see s 75(5).

41    As was noted in Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211 by Heerey J at [22], the referral mechanism thus operates as a kind of “triage system”.

42    The Minister, in undertaking that function, is required to consider all adverse impacts the referred action has, will have, or is likely to have on the matters of national environmental significance protected by each of the provisions of Pt 3 of the EPBC Act (s 75(2)(a)). He or she is required to exclude from his or her consideration any beneficial impacts the action has, will have, or is likely to have on those matters (s 75(2)(b)).

43    The Minister is thus charged with the task of determining within a relatively short timeframe which one of the following is to apply to a referred proposed action: (a) the proposed action is not a controlled action because it would not have a significant impact on any matter of national environmental significance; (b) that the proposed action is not a controlled action because the Minister believes it will be taken in a particular manner; or (c) it is a controlled action.

44    A controlled action is required to be evaluated pursuant to one or other of the assessment processes prescribed by Pt 8 of the EPBC Act.

45    For completeness, I note that those three options do not exhaust the possible outcomes: within the same short timeframe the Minister may determine that a proposed action is clearly unacceptable (s 74B).

2.9    The Minister seeks further information from DPIPWE

46    I am satisfied that, upon receiving the referral, the Department understandably, but in error, proceeded initially on the basis that DPIPWE itself was proposing to take the action.

47    On 6 June 2012, after receiving the referral, on the Minister’s behalf the Department sought further information regarding the proposed action from DPIPWE (Ex A1 pp 357-358). Nothing in that correspondence suggests the Department at that stage regarded Huon, Petuna and Tassal as being (collectively) the proponent of the action. That the Department sought further information only from DPIPWE entitles the Court to draw the inference that at that time the Department was operating under the apprehension that DPIPWE was the person proposing to the action. Section 75(5) provides that the time in which the Minister is required to make a decision in respect of a referral does not run while further information is sought pursuant to subs 76(1) or (2). Those subsections “stop the clock” only if the information has been sought from “the person proposing to take the action”.

48    On 27 June 2012, DPIPWE provided additional information in response to the Minister’s request (Ex A1 pp 359-367).

49    It is apparent that that further information failed to satisfy the Department that it should advise the Minister that the action would not be a controlled action. On 5 July 2012, Mr Andrew Tankey, Acting Assistant Director of the Environment Assessments Branch emailed Ms Fionna Bourne of DPIPWE regarding “outstanding issues for the Macquarie Harbour referral” (Ex A1 pp 368-369). In his email, Mr Tankey identified that the Department still had concerns regarding issues in relation to the Maugean Skate and the Tasmanian Wilderness World Heritage Area.

50    Mr Tankey told DPIPWE that the information it had provided at that stage was inadequate. There was an absence of detail regarding commitments. He exampled that trigger levels for ammonia, nitrate and dissolved oxygen had not been provided. Mr Tankey advised DPIPWE that “Not Controlled Action – Particular Manner” outcomes “are only possible where there are specific, quantified commitments that bind the referring party to undertaking the action in a specific way”.

51    On 5 September 2012 Mr Evans responded on behalf of DPIPWE to Mr Tankey’s request of 5 July 2102 that DPIPWE provide additional information about the proposed action.

52    Mr Evan’s response contained the following statements and undertakings:

The proposed expansion of marine farming activities under the Macquarie Harbour Marine Farming Development Plan as amended will result in the relocation of 59 percent of the existing marine farming lease area that currently occurs in less than 20 metres into the central, deeper water region of the Harbour. This will effectively reduce the lease area in regions where the Maugean Skate have been identified.

In relation to benthic impacts, and their possible impact on MNES – Maugean Skate, as previously outlined, baseline environmental surveys must be undertaken by lease holders prior to the commencement of marine farming operations within any marine farming lease area. Assessment includes the collection of information on the physical, chemical and biological characteristics of sediments, current flow, bathymentry and habitat assessment. The information is used as a benchmark against which marine farming operations are monitored.

In addition to the baseline monitoring assessment, marine farm licence conditions require leaseholders to undertake annual benthic video assessments of lease areas and compliance sites located 35 metres outside lease areas (See Attachment 1 standard monitoring methods and requirements). Compliance monitoring reports are assessed against marine farming licence conditions specific to benthic impacts associated with particulate organic deposition from finfish farming operations.

All marine farming operations in Tasmanian waters have the same licence conditions relating to unacceptable benthic impacts. The licence conditions are based on extensive international and local research, with the local research particularly focusing on the effects of marine farming derived organic enrichment on sediment condition and recovery processes. The following licence conditions relating to unacceptable benthic impact are currently in all marine farming licences for operations in Macquarie Harbour. These conditions will also be included in the licences granted for the operation of the proposed expanded marine farming operations.

There must be no significant visual, physio-chemical or biological impacts at or extending beyond 35 metres from the boundary of the Lease Area. The following impacts may be regarded as significant:

Visual Impacts:

•    Presence of fish feed pellets;

•    Presence of bacterial mats (e.g. Beggiatoa spp.);

•    Presence of gas bubbling arising from sediment, either with or without disturbance of the sediment;

•    Presence of numerous opportunistic polychaetes (e.g. Capitella sppp., Dovilleid spp.) on the sediment surface.

In the event that a significant visual impact is detected at any point 35 metres or more from the leave boundary the licence holder may be required to undertake a triggered environmental survey or other remedial activity determined by the Director.

Physio-chemical:

•    Redox: A corrected redox value which differs significantly from the reference site(s) or is <O mV at a depth of 3cm within a core sample.

•    Sulphide: A corrected sulphide level which differs significantly from the reference site(s) or is >250µM at a depth of 3cm within a core sample.

Biological:

•    A 20 times increase in the total abundance of any individual taxonomic family relative to reference sites.

•    An increase at any compliance site of greater than 50 times the total Annelid abundance at reference sites.

•    A reduction in the number of families by 50 per cent or more relative to reference sites complete absence of fauna.

There must be no significant impacts within the Lease Area. The following impacts may be regarded as significant:

Visual impacts within Lease Area:

•    Excessive feed dumping.

•    Extensive bacterial mats (e.g. Beggiatoa spp.) on the sediment surface prior to restocking.

•    Spontaneous gas bubbling from the sediment.

lf a significant impact (as defined in the licence conditions and outlined above) is detected within or outside the lease areas, during annual compliance monitoring surveys, targeted management responses are required, in addition to possible further investigation and depositional modelling.

Targeted management responses are implemented by way of management controls outlined in the Macquarie Harbour Marine Farming Development Plan as amended, by the Secretary of the Department of Primary Industries, Parks, Water and Environment and involve one or more of the following actions:

•    reduction in biomass,

•    reduction in nitrogen output, or

•    redistribution of biomass.

These management controls ore designed to regulate the stressor, both soluble and particulate, loads. Given that organic enrichment effects are lease specific, direction by the Secretary to reduce input is primarily focused on reducing biomass load, or redistributing biomass load within a specific marine farming lease area, including fallowing a particular pen bay or pen bays.

Where a significant impact, as defined, is observed, and specific management actions are required by the Secretary to be implemented, the leaseholder is required to undertake a follow-up benthic video assessment to m on it or benthic recovery.

The regulation of benthic impact from marine farming operations, as described above, has been in place for all marine farming operations in Tasmanian waters for the last 16 years. During this period it has been demonstrated that organic loading effect s from farming operations can be effectively managed using the environmental management framework outline above. This, together with the information regarding the distribution of Maugean Skate within Macquarie Harbour, including in close proximity to existing marine farm operations, leads the Department to the view that the expansion of marine farming activities in Macquarie Harbour will not have a significant impact on the MNES – Maugean Skate.

Tasmanian Wilderness World Heritage Area and Maugean Skate

Issues associated with water quality have the potential to impact on two MNES – the Tasmanian Wilderness World Heritage Area and the Maugean Skate. The Department has worked closely with representatives of the three companies who will be undertaking the marine farming expansion activities to develop an appropriate water quality monitoring program and water quality limits to ensure that the proposed expanded marine farming activities do not have a significant impact on these matters of MNES.

As you are aware, as part of the ongoing development of the model which was used by the State Government to assess the amendment to the Macquarie Harbour Marine Farming Development Plan, the three companies have been collecting monthly water quality data since September 2011. The model will be recalibrated during the first review cycle of the adaptive management framework, using at least 12 months of water quality data within the harbour that reflects the current extent of marine farming activities.

Marine farming licences will contain conditions that require the licence holders to undertake a water quality program to monitor changes in indicator levels relative to prescribed limits within Macquarie Harbour.

The monitoring program will involve continued assessment of the water quality indicators – ammonia, nitrate and dissolved oxygen, at 11 sites throughout the Harbour (refer Map 2 for sample locations) until mid 2013 after which the number of monitoring sites will be reviewed. In addition the marine farming licences will require quarterly reporting and interpretation of the results of the water quality monitoring program.

Water quality limits will be contained within marine farming licences, and will be based on the 80th/20th percentile values of the water quality indicators, based on the predictive biogeochemical and hydrological model outputs. The percentage values of the water quality indicators will be:

•    Ammonia - 80th percentile;

•    Nitrate - 80th percentile;

•    Oxygen - 20th percentile.

As a precautionary measure to ensure that expansion of salmonid production in the harbour does not significantly impact on water quality, interim water quality limits have been established for the above water quality indicators. These interim limits will be in place until the first review of the adaptive management framework is completed in mid 2013, and will be included as mandatory conditions within the marine farming licences.

In mid 2013 the interim water quality limit levels will be reviewed. The approach to water quality limits after the review will be based on the 80th/20th percentile as is the case for the interim levels outlined above. The reviewed figures will be derived from a recalibrated biogeochemical and hydrological model that will be informed, amongst other things, by at least 12 months of water quality data collected from the harbour, and further predictive modelling.

The interim water quality limits and the water quality monitoring requirements contained within marine farming licences will not be updated, and additional finfish biomass above and beyond that indicated in the Secretary’s letter of 27 June 2012 will not be able to be added to the harbour until such time as the review is completed, and the marine farming licence conditions amended to reflect the outcome of the review.

The environmental condition of Macquarie Harbour has undergone a number of assessments, and in each of those assessments it has been determined that the harbour is not pristine, and has had some level of impact from past activities.

For example the Australian Natural Resource Atlas describes Macquarie Harbour as being of modified condition, and under the Conservation Significance of Tasmanian Estuaries project of my Department the harbour is classified as having low conservation significance as a result of being moderately degraded. (See Attachment 2 for further information).

In addition, if the ANZECC Classifications and Recommendations framework is used Macquarie Harbour would be described as a slightly to moderately disturbed ecosystem in which biological diversity may have been adversely affected to a relatively small but measurable degree by human activity.

The ANZECC Guidelines 2000 recommended that guidelines be developed on the basis of biological effects data, where such data is not available, or alternatively use base guidelines on the 80th and/or 20th percentiles of data from reference sites. In particular for slightly to moderately disturbed ecosystems such as Macquarie Harbour it is recommended that:

The trigger values are derived from the 80th and/or 20th percentile values obtained from an appropriate reference system. For stressors that cause problems at high concentrations (eg. nutrients, salinity), that the 80th percentile of the reference distribution as the low-risk trigger value. For stressors that cause problems at low levels (eg. low dissolved oxygen in waterbodies), use the 20th percentile of the reference distribution as a low-risk trigger value.

Biogeochemical and hydrological modelling has been used to consider the effects on water quality arising from the expanded salmonid farming activities. The modelling has predicted that certain parameters will be elevated with increased production. Assessment of the effects of the modelled outputs predicts that at the maximum level of modelled production there will be no significant impact on the environment and ecosystems of Macquarie Harbour, and that the expected effects fall within an ‘acceptable’ level of change.

The predictive biogeochemical and hydrological model output has been adopted for use for establishing the values of the water quality indicators because it is a specific tool that has been developed for Macquarie Harbour, taking account of the existing knowledge as it relates to the hydrodynamics of the harbour, and the existing environmental conditions, rather than applying a generic set of environmental guidelines. The model defines the limits of predicted change within acceptable ecological and toxicological levels as discussed in relevant literature and environmental guidelines. As such, the model will be used as the reference system when setting the water quality limits.

The interim limit levels for each of the water quality indicators are as follows:

It is noted that the above limit levels for ammonia are significantly below the level of 0.460 mg/L outlined by Batley and Simpson (2009) as representing a low risk of acute or toxic effects in a slightly to moderately disturbed system. Given that nitrate is significantly less toxic than ammonia the Canadian Water Quality Guidelines: Nitrate Ion, Scientific Criteria Document (2012) recommends a long-term exposure guideline of 45 mg/L for nitrate for the protect ion of temperate marine species. The interim limit levels for nitrate proposed above is significantly less than this. Finally for oxygen, the interim limit level is well above that recommended by the US Environment Protection Authority as a safe/low risk chronic protective value. (See Attachment 3 for further information).

As with benthic impacts, the above interim water quality limit levels will be included as a mandatory condition of all marine farming licences. Specifically, marine farming licences will state that:

The regional annual rolling median value of any of the following indicators where directly attributable to marine farming operations, must not exceed the limits specified in the following table:

Indicators and Limits:

Reporting of biomass and nitrogen inputs will also be a requirement of licence conditions, with quarterly reporting required for each marine farming lease area.

The assessment of indicators will be made on pooled results from the regional compliance monitoring stations … If the observed regional annual rolling median value for an indicator exceeds the specific limit prescribed in the marine farming licence condition, a management response will be required. Again, as with benthic impacts the management actions required by the Secretary would involve one or more of the following actions:

•    reduction in biomass,

•    reduction in nitrogen output, or

•    redistribution of biomass.

The final point on water quality as it relates to the MNES - Maugean Skate is to note that the listing statement or the species indicates that it inhabits low-nutrient brackish water, 5-7 metres deep. Recent and historical water quality data from Macquarie Harbour suggests that the water within the harbour is not low in nutrients, for example datasets from the 1980’s (Creswell et al., 1989) and (DPIPWE 2011) and the present indicate that water in Macquarie Harbour for nitrate and ammonia exceed the ANZECC Guidelines recommended low risk trigger values for environmental protection of estuaries. This data provides evidence that would suggest that a low­ nutrient environment is not a requirement for the Maugean Skate’s survival.

The regulation of water quality parameters for marine farming operations, as described above, will ensure that a reduction in water quality arising from the expansion of marine farming activities in the harbour will be effectively managed using the environmental management framework outlined above. As a result the Department is of the view that the expansion of marine farming activities in Macquarie Harbour will not have a significant impact on water quality within the harbour nor a concomitant significant impact on the MNES – Tasmanian Wilderness World Heritage Area or the Maugean Skate.

I hope the above, together with the attached documents provides sufficient information for you to make an assessment as to whether the proposed marine farming expansion activities within Macquarie Harbour are a controlled action. …

(Ex A1 pp 381-387)

2.10    Department receives legal advice that referral is for an action to be undertaken by Huon, Petuna and Tassal

53    I infer that late in its consideration of the referral the Department received legal advice that, properly understood, the action would in fact be undertaken by Huon, Petuna and Tassal. The substance of that advice is referred to in a document entitled “Supporting advice from the Heritage Branches” reproduced in the departmental brief later submitted to the Minister. It contains the following (Ex A1 p 465):

The referral has been made by the Tasmanian Department of Primary Industries, Parks, Water and Environment (Heritage understands that legal advice has been obtained by EACD as to the proponent … as activities carried out under the MFDP would be undertaken by one of three aquaculture companies expected to operate under the plan: Petuna Aquaculture Pty Ltd, Huon Aquaculture Group Pty Ltd and Tassal Operations Pty Ltd.

Note that, at the request of EACD, this advice assumes an “Action” that is comprised of the operation of one or more of these three companies under the revised MFDP.

54    On 5 September 2012 (coincidentally the same day as Mr Evans had respondent to Mr Tankey’s earlier email seeking specific, quantified commitments binding on the referring party) Mr Tankey sent an email to Ms Bourne containing the following (Ex A2 pp 1179 – 1180):

Following our recent conversation on Monday I wanted to confirm our approach for this referral process that we will need to follow to progress to a statutory decision (once the adequate additional information has been received).

Our advice on evaluation of this referral, is that this referral is most appropriately considered under section 69 of our Act, whereby DPIPWE has referred the action on behalf of the operators. To ensure a legally robust decision we will need to write to the operators and ask them to provide the additional information that you are currently preparing. This formality is necessary to ensure that we meet the relevant procedural fairness requirements for administrative decision-making.

To cover off on this, we will be writing to the operators to confirm they have received the original referral which you have submitted, and also the [department’s] additional information request.

To assist us in this, can you please provide contact details (both post and email) for each of the operators? We would like to send this letter to each company as soon as possible, and we will copy you into these letters.

The subsequent step will be for us [to] have formal sign-off from the operators on the final additional information to be provided to DSEWPAC (for example, to confirm that they can and will undertake any specific commitments in this documentation). To ensure this happens as efficiently as possible, we suggest that DPIPWE coordinates the submission of the additional information through the operators. (For example, you may wish to submit the information to DSEWPAC with a cover letter signed by all parties that binds the operators to the material you have prepared).

55    In order “[t]o cover this off on this” (to use the language of that email), on 7 September 2012, Mr James Tregurtha, the Assistant Secretary of the South-Eastern Australia Environment Assessments, Environment Assessment and Compliance Division of the Department, wrote to each of the operators to inform them that a referral had been made by DPIPWE, which was “being considered in accordance with section 69 of the EPBC Act” (Ex A1 pp 370-375).

56    Mr Tregurtha’s correspondence, sent in identical terms save as to addressees, identified Huon, Petuna and Tassal as proposing to “jointly undertake the action”.

57    Each letter informed its recipient that the Department had received a referral under the EPBC Act from DPIPWE. Each letter attached the Department’s correspondence of 4 June 2102 as had been previously sent to DPIPWE requesting further information. As addressed to Huon, Mr Tregurtha’s letter was as follows:

In considering the referral, we understand that the following persons (‘the operators’) are proposing to jointly undertake the action:

1.    Yourself, (Huon Aquaculture Group Pty Ltd ABN; 79 114 456 781)

2.    Tassal Operations Pty Ltd; ABN 38 106 324 127; and

3.    Petuna Aquaculture Pty Ltd, ABN 62 009 485 581.

In accordance with section 73(a) of the EPBC Act you are hereby notified of the referral submitted to the Department in accordance with section 69 of the EPBC Act. If you are not proposing to undertake the action as referred, we would be grateful if you could please advise the Department as soon as possible.

Request to provide information

In accordance with section 75 of the EPBC Act, the Minister must decide whether the referred action is likely to have a significant impact on one or more matters protected by the EPBC Act, that is, whether the action is a ‘controlled action’ (“the controlled action decision”).

However, the referral does not provide sufficient information for the Minister to be able to determine whether or not the action is likely to have a significant impact on one or more matters protected by the EPBC Act. As such, in accordance with section 73(b) of the EPBC Act you are requested to provide the Minister with relevant information about the proposed action, to enable the Minister to make a decision with respect to section 75 of the EPBC Act. The specific information required is identified in the correspondence enclosed.

58    I infer Mr Tregurtha proceeded in that way because, the Department having received legal advice, it had become apparent to it that the requirements of s 73 of the EPBC Act had not earlier been complied with. It is also available to infer that the three companies were sent copies of the request for further information earlier made by DPIPWE and asked to provide “the specific information required” because s 76(1) of the EPBC Act provided that a request for more information in respect of a referral is to be made to the person proposing to take the action.

59    The Department received replies from each of Huon, Petuna and Tassal by 17 September 2012. Each of their replies were in materially identical terms (Ex A1 pp 376-378). That which was received from Huon was as follows:

I refer to your letter of 7 September 2012 notifying that the Department of Sustainability, Environment, Water, Population and Communities (SEWPAC) has received the above referral from the Department of Primary Industries, Parks, Water and Environment (DPIPWE), the state agency with administrative responsibilities for the proposed action, which is being considered under section 69 of the Environment Protection and Biodiversity Conservation Act 1999.

I can advise that Huon Aquaculture Group Pty Ltd (HUON) is fully aware of the referral submitted to SEWPAC by DPIPWE on 29 May 2012 and has had considerable input into the preparation of the referral.

Huon has also been forwarded subsequent correspondence from SEWPAC to DPIPWE, dated 6 June 2012 and 5 July 2012, requesting further information in relation to the proposed action. Again, Huon has had considerable input into the preparation of responses to SEWPAC’s requests.

As requested in your letter of 7 September 2012 please find attached correspondence dated 27 June 2012 and 5 September 2012 which provides further information to address SEWPAC’s requests for further information.

Please do not hesitate to contact Huon should you require further information.

60    It is apparent that none of the “operators” (Huon, Petuna and Tassal) took issue with Mr Tregurtha having referred to them as “proposing to jointly undertake the action”.

61    There is nothing in the materials before the Court to suggest the Minister sought any further information from them.

2.11    Department submits a Referral Decision Brief to the Minister

62    On 1 October 2012 Mr Tregurtha signed a Referral Decision Brief for the purpose of providing advice to the Minister in relation to the proposed action that had been referred to him for decision. The brief is at Ex A1 pp 431-537.

63    The brief provided to the Minister contained a “Recommended Decision” (Ex A1 pp 435 – 436):

Under section 75 of the EPBC Act you must decide whether the action that is the subject of the proposal referred is a controlled action, and which provisions of Part 3 (if any) are controlling provisions for the action. In making your decision you must consider all adverse impacts the action has, will have, or is likely to have, on the matter protected by each provision of Part 3. You must not consider any beneficial impacts the action has, will have or is likely to have on the matter protected by each provision of Part 3.

The department recommends that you decide that the proposal is not a controlled action for the purpose of the following controlling provisions, provided it is undertaken in the particular manner specified in the notice attached for your signature. The reasons for this recommendation are further detailed below in relation to the relevant protected matters.

•    Listed threatened species and communities (sections 18 and 18A);

•    The world heritage values of a declared World Heritage property (sections 12 and 15A);

•    The heritage values of a National Heritage place (sections 15B and 15C).

64    The advice provided to the Minister specifically with respect to the Maugean Skate in that brief is set out at pp 436 – 437 of Ex A1:

Maugean Skate (Zearaja maugeana) – Endangered

The Maugean Skate is a medium-sized skate with a broad, slightly depressed tail, an elongated snout and spatula-like claspers. The species is grey-brown above and dark with dark-edged pores underneath. The species is restricted to two biologically unique estuarine systems in western Tasmania; the Bathurst and Macquarie Harbours. These estuaries are relatively small systems and habitat for this species is generally in shallow water (only about 10% of the harbour). The total area of occupancy for the Maugean Skate is around 100 km², with 60 kmin Macquarie Harbour and 40km² in Bathurst Harbour. The total population size is estimated to be approximately 1000 individuals, although this figure is uncertain. The ecology and distribution of the species is not well known, however research suggests that the species is restricted to brackish, estuarine water, 5-7 metres in depth and low in nutrients.

The department considers that the proposed action may potentially impact the species through:

•    nutrient loading in the water column from fish feed and fish waste; and

•    changes to the benthic environment in the immediate vicinity of each marine farming lease as a result of fish feed and fish waste accumulating on the sediment surface that may be habitat for Maugean Skate.

The department notes that fish feed is a substantial, operational expense and that the proponents have extensive controls in place to prevent its excessive use and waste. Also, fish that have died are regularly removed and stored on land in buried puts, to avoid contamination of the harbour environment.

On 17 September 2012, the proponent [sic] provided additional information about the Maugean Skate, including details of survey efforts in Macquarie Harbour. These surveys include marine farming compliance video monitoring of the seabed that have been conducted since 1997, as well as targeted gillnet surveys carried out in 2003-2004 and 2011-2012. This information states that since compliance-based underwater video assessment commenced, over 1450 spot dives and 18 kilometres of strip transects have been filmed in depths ranging from 3 to 45 metres …

The most recent gillnet surveys for skate were undertaken for a separate research project by the Institute of Marine and Antarctic Studies which netted 63 individuals in shallow water, in close proximity to existing marine farming activities. Individuals were also netted in popular recreational fishing areas near where the King River enters Macquarie Harbour (an area which is known form historic upstream legacy mining issues and associated water quality contamination). These results indicate the presence of the skate in relatively disturbed areas.

Advice provided by the department’s Marine Division highlighted the need to quantify and minimise impacts to this species. The department considers that the additional information provides a higher level of certainty (in relation to the original referral information) regarding the likely impacts of the proposed action on this species. The information demonstrates that populations are utilising habitat in close proximity to existing marine farming activities and may be resilient to associated water quality changes and benthic impacts.

It is unlikely that the proposed activity will result in the direct mortality of individuals; rather, it may place pressure of the species by potentially reducing the amount of available habitat in the harbour, which appears to be locally confined to shallow waters. The survey data provided by the proponent suggests a level of resilience to nearby marine farming activities, potentially including changes in nutrient levels and changes in the benthic environment. The department believes that this is evidence that with appropriate controls (as per the particular manner requirements), the proposed activity is unlikely to permanently impact suitable habitat.

The idea that the species is resilient to marine farming activities is further supported by data from current marine farming activities, including instances where individuals have been caught directly underneath, or in close proximity to farming operations. It can be assumed that if individuals were sensitive to nutrient loading associated with marine farming, alternative habitat would be favoured, away from existing leases. The department considers this is unlikely to be the case, as there are records from within existing leases. Given individuals have also been caught in popular recreational fishing areas, in close proximity to the Kind River that contains many heavy metals and pollutants associated with legacy mining issues, the department believes that the species is somewhat resilient to both localised and broader water quality changes in Macquarie Harbour.

The department also notes that the proposed activity will primarily occur in waters deeper than 20 metres. The information provided by the proponent [sic], as well as independent research suggests that skate individuals are unlikely to occur in deeper waters. Extensive video monitoring undertaken in Macquarie Harbour has only identified two records in waters deeper than 20 metres, one inside and one approximately 35 metres outside a marine farming lease area.

Conclusion

The department recommends that the particular manner requirements at Attachment F be required to ensure that project activities do not have a significant impact on the Maugean Skate. Considering the information provided by the proponent about the presence of individuals in close proximity to existing marine farming activities, and the strict controls recommended by the department, it is very unlikely that project activities will modify, destroy, remove, isolate or decrease the availability or quality of habitat to the extent that the species is likely to decline. Therefore the department considers that with the recommended particular manner requirements imposed, the proposed action is unlikely to significantly impact the species.

(Emphasis in original.)

65    The advice provided to the Minister with respect to the World Heritage properties and National Heritage places is set out at pp 441 – 449 of Ex A1:

Tasmanian Wilderness World Heritage Area

The proposed marine farming activities are to be undertaken within close proximity to the Tasmanian Wilderness World Heritage Area, which was listed in 1982 for both its natural and cultural {indigenous) outstanding universal values. The listed area was extended in 1989 in recognition of additional natural values, extended again to include 21 adjacent formal reserves in 2010, and to include the Southwest Conservation Area (Melaleuca to Cox Bight) in July 2012.

The proposed expansion of marine farming is contained within Macquarie Harbour. The proposed project borders the Tasmanian Wilderness World Heritage Area, with the nearest proposed marine farming zone and associated lease being approximately 375 m and 520 m respectively from the World Heritage area boundary. No proposed terrestrial activities are immediately adjacent to the Tasmanian Wilderness World Heritage Area.

The National Heritage values of this property are taken to be the same as those of the World Heritage property. The values most relevant to this proposal include:

•    undisturbed river systems which show particular geomorphological processes;

•    ecosystems which are relatively free of introduced plant and animal species: and

•    undisturbed catchments, lakes and streams.

Listed natural and cultural heritage values of the Tasmanian Wilderness World Heritage Area which have the potential to be impacted include the relatively undisturbed nature of the property (as represented by the near-natural waterways of that part of Macquarie Harbour within the World Heritage Area), the population of the Maugean Skate (an ancient taxon with Gondwanan links) and other endemic fauna, including benthic taxa and ecosystems that are almost free of introduced species.

Potential impacts on the Tasmanian Wilderness World Heritage Area from changes to water quality

The department notes that there is the potential that proposed activities will impact on values of the Tasmanian Wilderness World Heritage Area. Potential impacts may result from changes to water quality as a result of nutrient loading in the water column and benthic changes that may also affect threatened species habitat.

Information provided by the Tasmanian Government states that operators will develop a water quality monitoring program and establish water quality limits. Monthly water quality data has been collected since September 2011 and the model developed for the State assessment process will be recalibrated during the first review cycle of an adaptive management framework using at least 12 months of water quality data within the harbour. The department notes the importance of maintaining an adaptive framework where modelling is based on substantial baseline information (at least 12 months). These requirements are recommended in the particular manner notice at Attachment F.

Referral information states that the monitoring program will involve continued assessment of the water quality indicators ammonia, nitrate and dissolved oxygen at 11 sites throughout the harbour (including the Tasmanian Wilderness World Heritage Area). Sites will be set until mid 2013 after which specific locations will be reviewed. State marine farming licences will require quarterly reporting and interpretation of the results of the water quality monitoring program. The department considers that this proposed approach is reasonable, as it is appropriate and desirable that the model is adaptive and reviewed regularly as additional information becomes available. The department also considers that the reporting and interpretation requirements of state marine farming licences are adequate, in relation to the protection of protected matters.

Referral information confirms that water quality limits will be based on the 80th/20th percentile values of the water quality indicators based on the predictive biogeochemical and hydrological model outputs (the model developed to assess the proposed action at the State level). This process is generally in accordance with the ANZECC Guidelines 2000. The tables below describe the key water quality limits to be applied, at depths of 2 metres and 20 metres.

The proponents state that the above limits for ammonia are significantly below the level of 0.460mg/L outlined by Batley and Simpson (2009) as representing a low risk of acute or toxic effects in a slightly to moderately disturbed system. Given that nitrate is much less toxic than ammonia, the Canadian Water Quality Guidelines: Nitrate Ion, Scientific Criteria Document (2012) recommends a long-term exposure guideline of 45mg/L for nitrate for the protection of temperate marine species. The interim nitrate levels above are much less than this. Finally, for oxygen, the interim limit level is well above that recommended by the US Environment Protection Authority as a safe/low risk chronic protective value.

Comments provided by the department's Supervising Scientist Division further support the view that the justification for setting each limit appears reasonable overall. In particular, the guidelines used appear appropriate and reasonable as to the method for setting limits. These have been based on local water quality data in Macquarie Harbour as opposed to the more general ANZECC Guidelines 2000 approach for South-East Australia. The department is therefore confident that the limits and methods outlined above are appropriate and reasonable given the risk of the proposed activities to protected matters. These requirements are recommended in the particular manner decision notice at Attachment F.

In the event that a limit identified above is breached, the proponents have confirmed that they will implement immediate corrective targeted management actions. These actions will include:

•    reduction in biomass,

•    reduction in nitrogen output, or

•    redistribution of biomass.

The department considers the above corrective targeted management actions are appropriate to manage water quality related risks of the proposed activities to protected matters. For example, the recommended particular manner requirements at Attachment F state that:

•    If the water quality monitoring program identifies that the rolling annual median value for any of the water quality indicators ammonia, nitrate and dissolved oxygen, within the compliance region, exceed the identified limit levels and that this is attributable to marine farming operations, targeted management responses must be implemented within 10 weeks of the most recent quarterly monitoring report;

Targeted management actions must be undertaken until the monitoring assessment of the water quality indicators ammonia, nitrate and dissolved oxygen identifies that the identified limit levels are not being exceeded ...

[References to other impacts not considered to require manner provisions have been deleted]

Conclusion

The department considers that the primary risk to the Tasmanian Wilderness World Heritage Area from the proposed action is from changes to water quality. This may occur through nutrient loading in the water column and possible benthic impacts as a result of fish feed and fish waste settling on the sediment surface. The department considers that the proposed monitoring program, adaptive modelling program, proposed trigger levels and targeted management responses appear adequate given the risk the proposed activities pose to protected matters.

The department considers that the proposed trigger levels to prevent changes to water quality are below toxic levels and have been determined using an appropriate methodology that considers both ANZECC Guidelines 2000 and other material as appropriate (such as the Environment Canada ecotoxicological-based Guidelines and information from the US Environment Protection Authority).

The department is confident that the recommended particular manner requirements will ensure that the proposed activities do not cause:

•    one or more of the World Heritage values to be notably altered, modified, obscured or diminished,

•    one or more of the World Heritage values to be degraded or damaged; or

•    one or more of the World Heritage values to be lost.

Considering the information discussed above, the department considers that with the recommended particular manner requirements, the proposed action is unlikely to result in a significant impact on any World Heritage value of the Tasmanian Wilderness World Heritage Area. For the same reasons, the proposed action is unlikely to result in a significant impact on any National Heritage value of the Tasmanian Wilderness World Heritage Area National Heritage Place.

(Emphasis in original.)

3.    The Minister’s decision

66    It is uncontentious that the Minister made a decision or purported to make a decision that the proposed action was not a controlled action if undertaken in a particular manner. In making his decision, the Minister signified that he had considered the information in the brief and attachments provided by the Department; that he agreed with the recommended decision; and that he accepted the reasoning in the departmental briefing package as the basis for his decision (Ex A1 p 540). Given those explicit statements, the Court is entitled to proceed on the basis that the advice provided by the Department, and the reasoning underpinning it, was adopted by the Minister.

67    Having made his decision that the action was not a controlled action because he believed that three relevant provisions of Pt 3 of the EPBC Act (World Heritage properties, National Heritage places and listed threatened species or endangered communities as set out in ss 12, 15B and 18 respectively) were not controlling provisions for the action because he believed they would be taken in a particular manner, the Minister became subject to the obligations provided for in s 77A of the EPBC Act to set out, in the notice prescribed by s 77, his component decision, identifying the provisions which otherwise would be controlling provisions and the manner in which he believed the action would be taken such that it would not be a controlled action.

4.    Terms of s 77 Notice

68    The notice given pursuant to s 77 of the EPBC Act (the s 77 Notice) was signed by the Minister on 3 October 2012 (Ex A1 pp 541-547). It states that the proposed action, being “[t]he expansion of marine farming operations in Macquarie Harbour, on the west coast of Tasmania,” is not a controlled action “provided it is undertaken in the manner set out in this decision”.

69    The manner provisions therein were as follows:

The following measures must be taken to avoid significant impacts on:

•    World Heritage properties (sections 12 and 15A);

•    National Heritage places (sections 15B and 15C); and

•    Listed threatened species and communities (sections 18 and 18A).

To ensure there are no significant impacts to the Maugean Skate or to the Tasmanian Wilderness World Heritage Area, the person taking the action must undertake the action in accordance with the Macquarie Harbour Marine Farming Development Plan October 2005. In particular, the person taking the action must undertake the following measures:

1.    To ensure there are no significant impacts to the Maugean Skate as a result of changes to the benthic environment, the person taking the action must:

a.    Take measures to prevent substantial benthic visual, physio-chemical or biological changes attributable to marine farming operations at, or extending beyond 35 metres from the boundary of any lease area;

b.    Undertake a baseline environmental survey of all new lease areas and compliance sites prior to commencement of marine farming operations;

c.    Undertake a benthic video assessment of lease areas and compliance sites in accordance with marine farming licence conditions;

d.    If a substantial benthic visual, physio-chemical or biological impact is detected as a result of benthic video assessment, targeted management responses must be implemented within 10 weeks of the assessment;

e.    Following any targeted management responses undertaken in accordance with 1(d) relating to a substantial benthic visual impact within a lease area, a follow up benthic video assessment must be undertaken at the lease areas prior to restocking;

f.    Following any targeted management responses undertaken in accordance with 1(d) relating to a substantial benthic visual, physio-chemical or biological impact at a compliance site, a follow up benthic video assessment must be undertaken at the compliance site to monitor benthic recovery within four months of the targeted management response; and

g.    1(e) and 1(f) must be undertaken until the benthic video assessment identifies that a substantial benthic visual, physio-chemical or biological impact is no longer occurring.

2.    To ensure there are no significant impacts on the Tasmanian Wilderness World Heritage Area and the Maugean Skate as a result of water quality changes, the person taking the action must:

a.    Undertake a water quality monitoring program for the assessment of the water quality indicators ammonia, nitrate and dissolved oxygen at the monitoring sites in accordance with marine farming licence conditions. Monitoring must occur at these monitoring sites on a monthly basis until 30 June 2013, when the number and location of monitoring sites will be reviewed;

b.    Take measures to prevent the rolling annual median value of quarterly water quality indicator values for ammonia, nitrate and dissolved oxygen, as recorded within the compliance region, from exceeding the identified limit levels;

c.    If the water quality monitoring program identifies that the rolling annual median value for any of the water quality indicators ammonia, nitrate and dissolved oxygen, within the compliance region, exceed the identified limit levels and that this is attributable to marine farming operations, targeted management responses must be implemented within 10 weeks of the most recent quarterly monitoring report;

d.    Following any targeted management responses undertaken in accordance with 2(c), a follow up monitoring assessment of the water quality indicators ammonia, nitrate and dissolved oxygen must be undertaken at the monitoring sites to monitor water quality recovery within four months of the targeted management response;

e.    2(c) and 2(d) must be undertaken until the monitoring assessment of the water quality indicators ammonia, nitrate and dissolved oxygen identifies that the identified limit levels are not being exceeded; and

f.    The total biomass held across all lease areas must not exceed 52.5 percent of the modelled maximum sustainable biomass until limit levels are reviewed in mid 2013, and must not exceed any such altered levels as may be identified thereafter by the Tasmanian Government.

3.    To ensure there are no significant impacts on the Tasmanian Wilderness World Heritage Area, including as a result of changes to viewfields, the person taking the action must:

a.    Undertake marine farming debris cleanup activities within Macquarie Harbour at regular intervals of every 12 months at a minimum. Marine debris cleanup activities must also occur on an as needs basis when members of the public or other stakeholders notify the person taking the action of areas, within Macquarie Harbour, requiring particular attention. These activities must be conducted in accordance with any applicable biosecurity control requirements and regulations, including relevant management guidelines relating to Phytophthora cinnamomi and Chytrid fungus (Batrachochytrium dendrobatidis), to prevent the spread of weeds or pathogens into the Tasmanian Wilderness World Heritage Area; and

b.    Ensure that all fish cages, buoys, netting and other floating marine structures and equipment, other than that required for navigational purposes, are grey to black in colour, or as otherwise specified in the marine fanning licence conditions.

Definitions

Benthic video assessment must be undertaken in accordance with the video assessment specifications as prescribed in marine farming licence conditions.

Compliance sites means a location 35 metres outside of any lease areas used for monitoring purposes. At least one compliance site must be identified and monitored for each of the lease areas.

Compliance region means monitoring sites 4, 6, 8, 9 and 10 identified in Attachment 1, or any other group of sites as prescribed in marine farming licence conditions.

Lease area means marine farming leases granted under the provisions of the Marine Farming Planning Act (Tas) 1995 within the area defined in the Macquarie Harbour Marine Farming Development Plan October 2005.

Limit levels for water quality indicators are set at the following interim levels:

•    Ammonia (at 2 metres depth) = 0.033 mg/L

•    Ammonia (at 20 metres depth) = 0.024 mg/L

•    Nitrate (at 2 metres depth) = 0.053 mg/L

•    Oxygen (at 2 metres depth) = 6.82 mg/L

Interim limit levels will be reviewed in mid 2013. Subsequent modifications to limit levels as a result of future reviews must be prescribed in marine farming licence conditions.

Marine farming licence conditions means conditions prescribed in marine farming licences issued pursuant to the Living Marine Resources Management Act (Tas) 1995 relating to lease areas.

Macquarie Harbour Marine Farming Development Plan October 2005 means the plan approved under the Marine Farming Planning Act (Tas) 1995 and includes Amendment No.1 to the Macquarie Harbour Marine Farming Development Plan October 2005 and future amendments.

Maugean Skate means Zearaja maugeana, listed as endangered under the Environment Protection and Biodiversity Conservation Act 1999.

Maximum sustainable biomass is currently modelled to be 29,500 tonnes.

Monitoring sites means the 11 water quality monitoring sites identified in Attachment 1.

Rolling annual median value is the median of the quarterly values from sites within the compliance region, updated quarterly, or as otherwise prescribed in marine farming licence conditions.

Secretary means the Secretary of the department administering the Marine Farming Planning Act (Tas) 1995 and the Living Marine Resources Management Act (Tas) 1995.

Substantial benthic visual impact at a compliance site may include:

•    the presence of fish feed pellets on sediment surface;

•    the presence of bacterial mats (e.g. Beggiatoa spp.) on sediment surface;

•    the presence of gas bubbling arising from the sediment, either with or without disturbance of the sediment;

•    the presence of numerous opportunistic polychaetes (e.g. Capitella spp., Dorvilleid spp.) on the sediment surface.

Or as otherwise prescribed in marine farming licence conditions.

Substantial benthic visual impact within a lease area may include:

•    Excessive feed dumping;

•    extensive bacterial mats (e.g. Beggiatoa spp.) on the sediment surface prior to restocking;

•    spontaneous gas bubbling from the sediment.

Or as otherwise prescribed in marine farming licence conditions.

Substantial benthic physio-chemical impact at a compliance site may include:

•    a corrected redox value which differs by more than 10 percent from the reference site(s) and baseline conditions or is < 0mV at a depth of 3 cm within a core sample;

•    a corrected sulphide level which differs by more than 10 percent from the reference site(s) and baseline conditions or is >250 µM at a depth of 3 cm within a core sample.

Or as otherwise prescribed in marine farming licence conditions.

Substantial benthic biological impact at a compliance site may include:

•    a 20 times increase in the total abundance of any individual taxonomic family relative to reference sites;

•    an increase at any compliance site of greater than 50 times the total Annelid abundance at reference sites;

•    a reduction in the number of families by 50% or more relative to reference sites complete absence of fauna.

Or as otherwise prescribed in marine farming licence conditions.

Targeted management responses may include a direction by the Secretary to undertake one or more of the following actions:

•    reduction in biomass;

•    reduction in nitrogen output;

•    redistribution of biomass.

Tasmanian Government means the Tasmanian Agency responsible for administering and regulating the Macquarie Harbour Marine Farming Development Plan October 2005.

Tasmanian Wilderness World Heritage Area means the World Heritage listed property and National Heritage listed place.

(Emphasis in original.)

70    Pursuant to s 77(4) of the EPBC Act, a person who has been given notice of a referral decision has 28 days within which to request reasons from the Minister. The Minister must provide written reasons “as soon as practicable, and in any case within 28 days of receiving the request”. No such request was made.

5.    The events that followed the Minister’s decision

5.1    Limits to the relevance of any facts post the date of decision

71    Mr Galasso properly eschews any reliance on the events which occurred after the date of the Minister’s decision to establish its invalidity. He accepts, and the Court proceeds on the basis that, the validity of the Minister’s decision is to be determined as at the point in time immediately after its making.

72    Mr Galasso nonetheless submits that the Court should not “determine the matter of breach by reference to the facts ex post facto, but the facts ex post facto demonstrate that the submissions we make are not hypothetical, theoretical or divorced from the real world” (transcript p 94 lines 38-44). So expressed, that proposition is uncontentious (no submission was advanced to controvert it) so long as it is firmly kept in mind that the Court is not entitled to determine the validity or otherwise of the Minister’s earlier decision through the lens of how events later unfolded. To take an obvious example: the fact, if it be the fact, that DPIPWE may not have complied with an undertaking it had given and upon which the Minister had relied does not establish that the Minister had no basis for believing that that undertaking would be met.

73    However, I accept Mr Galasso’s submission that subsequent events must be relevant to the discretionary case all of the respondents plead against Huon, not the least in relation to Huon’s reasons for delay (transcript p 94 lines 31-38). For that reason I set out a summary of those events.

5.1.1    Huon, Petuna and Tassal confirm that they will undertake the action in accordance with the manner provisions and commence expanding their fish farming operations

74    On 3 October 2012 the Minister wrote to each of Huon, Petuna and Tassal to advise them of his decision (Ex A1 pp 548-560). He sought their confirmation that the action would be undertaken in the manner set out in “the enclosed decision”. I infer that to be a reference to the s 77 Notice. He sought their undertaking that they would report within three months on their progress in implementing the measures. He advised that his Department had an active audit program to ensure there was a high degree of compliance with decisions made in relation to such proposals.

75    On 17 October 2012 Mr Peter Bender, Managing Director of Huon, replied to the Minister’s letter advising that “Huon Aquaculture Company wishes to confirm that the action will be undertaken in the manner set out in the enclosed decision as requested in that correspondence”. It is uncontentious that each of Petuna and Tassal did likewise.

76    The three operators each then took steps to expand their fish farming operations in Macquarie Harbour pursuant to the decision.

77    However, the evidence before the Court establishes that rather than taking that action jointly, differences as to how the decision should be given effect to soon thereafter emerged as between them.

5.1.2    Mid 2013 passes without new biomass limits being identified and set by the Tasmanian Government

78    The Minister’s referred to the total biomass limit for Macquarie Harbour in manner provision 2(f) as follows:

The total biomass held across all lease areas must not exceed 52.5 percent of the modelled maximum sustainable biomass until limit levels are reviewed in mid 2013, and must not exceed any such altered levels as may be identified thereafter by the Tasmanian Government.

(Emphasis omitted.)

79    It is uncontentious that a new total biomass limit was neither identified nor set until 9 October 2015 (evidence of Linda Sams, transcript p 302 line 40 – p 303 line 10).

5.1.3    Conflict arises regarding review

80    Whether a review for the purpose of setting a new total biomass limit was ever completed became the subject of conflict between the companies. In that regard, evidence in these proceedings was adduced by three witnesses: Mr Peter and Ms Frances Bender for Huon, and Ms Linda Sams for Tassal.

81    What is not in dispute is that in October 2013 the three operators jointly prepared a report titled “Review of the Macquarie Harbour Amendment Management Framework & Processes, Industry Report, Model Calibration Validation and Trigger Limit Review” which was then provided to DPIPWE (Ex A3 pp 38-65) (Industry Report). The Executive Summary of that document includes the following (Ex A3 p 43):

… [I]ndustry recommends that the current interim triggers be adopted as the confirmed triggers for Macquarie Harbour.

82    However, although senior employees of Huon had been engaged in the preparation and approval of that document, Huon did not accept that the review process was complete at that point. Huon took the position that the review envisioned by manner provision 2(f) of the s 77 Notice was required to be signed off on by its “Steering Committee”, which included the Chief Executive Officers of each of Huon, Tassal and Petuna. Ms Bender (one of Huon’s directors) gave evidence that the review had been circulated in draft form only (transcript p 146 lines 19-20).

83    Ms Bender’s evidence was that the review of the biomass limit had “been paused” prior to the Industry Report being submitted to the Steering Committee for sign off after it had become known that the dissolved oxygen levels in the harbour were trending down. Ms Bender’s evidence was that a “Dissolved Oxygen Working Group” had been established to advise the operators (transcript p 145 lines 15-16; p 146 lines 18-46).

84    Mr Peter Bender is and was at all material times not only a director but also the Chief Executive Officer of Huon. He was cross-examined by Mr McElwaine SC regarding the conclusions of the Industry Report as appeared under the heading “Review of Trigger Limits” (Ex A3 p 62). Mr Bender conceded he had concurred with the Industry Report’s conclusions and the recommendations on the following page as at the time of its preparation. However, Mr Bender maintained that the Industry Report had been submitted in draft form only (transcript p 220 line 31 – p 224 line 36). It had never been submitted to the Steering Committee for adoption.

85    Ms Linda Sams, Head of Sustainability for Tassal, gave evidence that Tassal’s understanding had differed from that of Mr and Ms Bender. In her affidavit (Ex T6), Ms Sams deposed as follows:

16.    In October 2013, Dr Main, on behalf of the TSGA submitted to DPIPWE a report, jointly prepared by Tassal, Huon and Petuna titled: ‘Review of the Macquarie Harbour Amendments Management Framework & Processes, Industry Report, Model Calibration Validation and Trigger Limit Review’ (the Review Report). A true copy of the email from Dr Main, which attaches the Review Report, is at annexure “FRB-2” of the Affidavit of Frances Bender made on 15 November 2017.

17.    In order to compile the Review Report, various meetings were held between, and correspondence passed, from persons appointed by each of Tassal, Petuna and Huon. I was the responsible and appointed representative of Tassal. Mr David Whyte and Mr Dom O’Brien were the appointed representatives of Huon. Mr Lance Searle was the appointed representative of Petuna. Each of us collaborated with Dr Main.

18.    We met on many occasions, we exchanged information and we ultimately settled upon and agreed with the content of the Review Report. I was not advised at any stage during the process which led to the production of the Review Report by either Mr Whyte or Mr O’Brien, that its content or methodology was not approved of by Huon.

19.    Individuals from each Huon, Petuna and Tassal had input to the drafting of the Review Report, and were responsible for authorship of aspects of it. It was a collaborative process.

20.     Shortly before finalisation of the Review Report I attended a meeting at the offices of DPIPWE in Hobart on 3 September 2013. The purpose of the meeting was to present the findings of the Review Group and to seek input from DPIPWE before submission of the final report. The meeting was held at Level 3, 1 Franklin Wharf Hobart. I recall that the following persons, at least, were present:

•    David Whyte and/or Dom O’Brien from Huon;

•    Lance Searle from Petuna;

•    Myself;

•    Adam Main, TSGA;

•    Fionna Bourne, DPIPWE

21.    The industry representatives presented an agreed powerpoint document titled: ‘MH Recalibration’ prepared by two firms, Aquadynamic Solutions and DHI. I attach at ‘5’ an extract from that document comprising the executive summary, outline and introduction.

22.    A subsequent meeting was held on 16 September 2013, again at the offices of DPIPWE, to discuss the final draft of the Review Report. Mr Whyte and/or Mr O’Brien attended from Huon, and I attended. There were other attendees, whom I do not precisely recall. The outcome of this meeting was that final agreement was reached as to the terms of the Review Report and that Dr Main would then submit it to DPIPWE.

86    Ms Sams gave evidence during examination-in-chief that “[i]t was a final version that was distributed on 14 February 2013” (transcript p 296 lines 15-16).

87    In cross-examination, Mr Galasso asked Ms Sams about the steps that had been required for the completion of the review:

[MR GALASSO:] … [T]his document [Ex T5] was set up for the purposes of the very thing that determination 2(f) was contemplating, wasn’t it?---It was part of what it was set up for, yes.

Yes. The scope, on the same page, has a table formed with five numbered boxes. See that?---Yes.

The project is complete when all of the steps is completed; correct?---Yes.

The review report, at best, was step 3; correct?---Yes.

Step 4 review biomass. And tell me what the acronym means. Total - - - ?---Total permissible dissolved nitrogen output.

That was never completed, was it?---No, not for this project.

Did Graham Wood or Tony Thomas sign off on it?---No.

“Review the project and develop future management strategy statement”. Was that ever done?---I suppose at later dates we were given biomass determinations.

But not when Tassal went and started importing additional smolt into the harbour on the back of its construction of what the review did, was it?---No. It wasn’t done under this process.

…

And I mentioned at the outset that you were a member of the steering committee and you were also a member of the project team?---Yes.

The steering committee also comprised of the Chief Executive Officers of each of Huon, Tassal and Petuna; correct?---Yes. That’s correct.

And one of them, Mr Bender, gave evidence yesterday?---Yes.

Any you will recall yesterday he gave evidence about the need to sign off on the matter?—On the – which matter?

Well, what did you understand him to be giving evidence concerning a sign-off?---He was giving evidence regarding the sign-off of the water quality review.

All right. That’s as you understood it?---That’s as I understood his evidence, yes.

Okay. Can you go to – and we established before the morning tea adjournment that this whole document was about what it’s labelled, the review of the management framework and processes; correct?---Correct.

And as his Honour sees in page 4 under the hearing Stakeholder Management and Communication, the very last sentence;

Completion of the project will require a final briefing to the project sponsor and the steering committee.

…

That never occurred, did it?---No, not for the project, no.

No. And Mr Bender and your CEO, Mark Ryan, and Mr Porter, the then CEO of Petuna, were members of the steering committee?---Yes.

…

And you will recall earlier we looked at box 4, that is the review of biomass and TPDNO levels by either Graham Woods or Tony Thomas. That step was on page 1 and it’s also on page 7 in the appendix. That was not done at any time before Tassal increased its biomass within the harbour, was it?---No, that step was – I’m not aware of that step being done.

(transcript p 311 line 1 - p 314 line 14)

5.1.4    Tassal proceeds on the basis that the limit on total biomass to be held across all leases had ‘fallen away’ because the Tasmanian Government had not identified any altered level after it had been provided with the Industry Report

88    For the purpose of these reasons, it is unnecessary for the Court to make findings about whether Huon or Tassal was correct regarding the status of the Industry Report. It is sufficient to record that thereafter, Tassal proceeded unilaterally on the basis that the review envisioned by manner provision 2(f) had been completed. On that understanding, DPIPWE not having thereafter set any revised total biomass limit, Tassal reasoned and acted on the premise of its reasoning, that it was entitled to conduct its marine farming operations in the lease areas it held in Macquarie Harbour on the basis that the total biomass limit referred to in manner provision 2(f) in the s 77 Notice had expired.

89    In her affidavit Ms Sams deposed as follows (Ex T6):

23.    … My state of mind was that the 52.5% cap was not in place for the 2014 year because it had been interim until the Commonwealth conditions were met. My state of mind at the time was that the biomass cap was no longer relevant because of the work done, the recommendations and conclusions of the Review Report submitted in October 2013. But that is why, in the next dot point, the minutes record that the AMAMG could not reach consensus on an approach to mitigate the predicted breach of the 52.5% restriction, due to my view that it was not in place and the point which I made was that the whole harbour would be above 52.5%, not Tassal alone. That is because it was a whole of harbour interim biomass cap.

90    Ms Sams gave evidence that Tassal had understood and applied that manner provision on the premise that the 52.5% biomass limit referred to by the Minister in that provision had “fallen away” as from the time the Industry Report had been submitted to DPIPWE (transcript p 311 lines 10-13). She accepted that Petuna and Huon had not shared that view.

91    During cross-examination, Ms Sams gave the following evidence:

[MS SAMS:]…[T]he other two companies, Huon and Petuna, were putting additional fish in. Tassal had always been very transparent from the beginning of the process that we were going to use 100 per cent of our lease from the beginning because we had the smolt capacity and we had the capital capacity. That was always very transparent. It was very transparent to the government as well. I merely stated a fact because I didn’t agree with the interpretation of the other two companies on the – of their interpretation of the decision and at that time they were under the impression that each company was to have 52.5 per cent and I said no, it’s a whole of harbour percentage - - -

Yes? - - - and as we proceed as we’ve all discussed for many months and years in that matter, that we would start to go over 52.5 per cent and I said and in fact, it has fallen away because we’ve met our obligations under the decision.

And when you asserted that it had fallen away, this is in 2013?---Yes.

The other two corporations disagreed with you, didn’t they?---They did.

They said, “No, the 52.5 per cent is still in place”?---That’s what they said.

Yes?---Yes. They wanted it to be in place.

(transcript p 304 line 46 – p 305 line 19)

5.1.5    Tassal unilaterally increases its smolt input to 100% of its allocated quota

92    Tassal was sufficiently well resourced to be able to increase its smolt input to 100% of its allocated quota. Having formed the view that the interim biomass limit had ceased to apply, Tassal took advantage of that opportunity to do so (transcript pp 304-305).

93    Ms Sams did not dispute that Tassal’s action in that regard had the consequence that the other operators could not take up a proportionate increase in their allocated quotas if the total biomass in Macquarie Harbour was not to exceed what, on the other operators’ view, remained the total biomass limit provided for by manner provision 2(f) as was binding unless and until altered by the Tasmanian government.

94    Ms Sams however denied that Tassal’s conduct in rapidly increasing the stocking levels of its leases had been inconsistent with the statement Tassal had joined with the other companies in making in their joint EIS (Ex A2 p 121):

The basis for the sustainable management of the industry in the harbour is to be provided through rigorous monitoring, firstly for harbour-wide effects and secondly for between and within fish farm effects. This acknowledges that there will be a gradual increase in overall production in the harbour and that the presently modelled maximum or final model scenario will not be reached within the first five years of operation of the new lease areas. The results obtained from the monitoring have been and will continue to be the basis for modelling the effects of farming operations on both the harbour-wide and fish farm scales and will enable comparison to future “trigger levels” which in turn will be based on the best possible science available at the time.

95    Ms Sams’ evidence in that regard was that the regulators would have been looking at the “whole harbour gradual increase because they had everybody’s information … and we were only one of three” (transcript p 321 lines 30-31). By way of clarification, counsel for Tassal, Mr McElwaine later submitted as follows:

Now, that begs the question, what was the presently modelled maximum? Well, we all know that was 29,000 tonnes. That comes out of the EIS, that’s the modelling. But then we apply that to the lease areas. We find these figures in Ms Sams’ affidavit. Under the amendments Petuna acquires 416 hectares, Tassal 280 and Huon 230. So as a percentage of the whole Tassal is 30.24 per cent of the entire area.

Thus, if Tassal increases to 100 per cent – now, 100 per cent is 35 tonnes per hectare, one sees that at appeal book page 19 – if it went to 100 per cent on day one, and the others didn’t follow suit until years after the event – I will take your Honour to the evidence about this – then that statement is perfectly correct. There is nothing misleading in that statement. Because on a whole of harbour analysis the 29,000 maximum modelled figure will not be reached unless and until Petuna and Huon stock to the maximum tonnage of 35 tonnes per hectare. So one operator doing it over 280 hectares is not the equivalent of – sorry, is not inconsistent with the proposition that the presently modelled maximum will not be reached within the first five years.

(transcript p 453 line 43 – p 454 line 10)

96    Mr McElwaine further drew the Court’s attention to pp 255 and 260 of the EIS to indicate that Tassal had made plain to DPIPWE and the Minister its specific intention to increase production as soon as it could. In particular, Mr McElwaine noted the description of Tassal in the context of its proposed use of Zone 9 (at p 255):

Tassal wishes to grow its business in a sustainable manner that aligns with the whole of industry growth strategy. Macquarie Harbour is a desirable region to grow salmon and [it] has the capacity to support additional lease areas …

Tassal has the deep economic and sustainable capability which the EDP is seeking. Tassal has a strong and robust balance sheet and is committed to continuing to contribute to the future and prosperity of the State…

…Tassal has the infrastructure, human resources and financial resources to immediately develop a new site in Macquarie Harbour.

5.1.6    Huon and Petuna request DPIPWE to immediately impose a total biomass limit

97    I find that Tassal’s conduct came as a surprise to the other two operators. On 20 August 2014 Huon and Petuna made a joint representation to DPIPWE. They expressed concern that there was an urgent need to enforce biomass limits to protect the health of the harbour. They wrote as follows (Ex A3 pp 77-80):

The purpose of this letter is to:

(a)    outline our concerns in relation to certain environmental and fish health indicators in Macquarie Harbour;

(b)    notify you that we believe that Tassal Operations Pty Ltd (Tassal) has stocked its marine farm leases in Macquarie Harbour to a level that has the potential to create significant environmental harm and negatively impact fish health; and

(c)    request that the Department directly regulates the maximum carrying capacity of fish within each marine farm lease in Macquarie Harbour by updating the marine farm license conditions applicable to Tassal, Huon Aquaculture Group Pty Ltd (Huon) and Petuna Pty Ltd (Petuna).

1    Salmon industry

The Tasmanian salmonid industry is now worth in excess of half a billion dollars annually and is Australia’s biggest fish species by value and volume.

Our industry has the potential to keep growing sustainably to meet demand, reaching a billion dollars annually within a reasonably short time frame.

Huon and Petuna represent more than 50% of salmonid production in Tasmania and in Macquarie Harbour hold almost 70% of the leasable area.

All of this is put in jeopardy if we do not farm sustainably.

2    Current regulation of activities within Macquarie Harbour